By finding Cooley to be in compliance with 501(b), when several other schools with less egregious admission practices have recently been found out of compliance,the ABA has opened itself up to more accusations of arbitrary and capricious decision-making (exactly the accusations that Cooley has made) and potentially additional litigation. After all, if the least selective law school in the country is in compliance with Standard 501(b), then how can any other law school be found out of compliance?

Well, it didn’t take long for this prediction to come to fruition. On Thursday, Florida Coastal School of Law and its parent company InfiLaw Corporation, filed suit against the ABA in federal court in Florida for its recent decision finding Florida Coastal out of compliance with several ABA Standards, including 501(b). After reviewing the complaint, I think Florida Coastal makes a pretty good case.

As I noted in my recent article, Florida Coastal’s 2017 admission statistics were significantly better than Cooley’s, so it was hard to square the finding that Cooley was in compliance with this Standard with the finding, made at the same March 15-17 meeting, that Florida Coastal was not. Florida Coastal echoed my argument in their lawsuit (see p. 28, para 118-121), stating, “A comparison of the two law schools’ objective metrics renders the Committee’s decision on Florida Coastal arbitrary and capricious.”

Information included in the lawsuit which was not previously publicly available, but which was available to the ABA before the March meeting, bolsters Florida Coastal’s claim that the ABA’s enforcement action is arbitrary and capricious. Florida Coastal has both a traditional fall starting class and a spring semester starting class which commences classes in January. Between the time that Florida Coastal was notified that they were out of compliance in October 2017 and the time of the March meeting, Florida Coastal matriculated a whole new class of 1Ls for the Spring 2018 semester. That group of students had the best entrance credentials that Florida Coastal has enrolled in years. The median LSAT (50%) was a respectable 150, and the 25% increased from 145 in 2017 to 147. More importantly, Florida Coastal did not enroll any students with an LSAT below 145 (students at 144 and below are at very high risk of failure in law school and on the bar). When I gave my Dean talk at Florida Coastal back in Spring 2014, this is exactly what I recommended to ensure compliance with 501(b) and ensure a respectable bar bass rate.

No law school with a most recently matriculated class with a 25% LSAT at 147 has ever been found by the ABA to be out of compliance with Standard 501(b), and for good reason. I have previously written on TFL that “A reasonable 75/50/25 for an opportunity school would be 151/149/147.” In another post, I wrote, “in states with bar exams of comparable difficulty to Florida, a good rule of thumb would be that in order to maintain an acceptable bar pass rate, schools should not allow their median LSAT to drop below 149, or their 25% LSAT to drop below 147.” Schools like Nova Southeastern have achieved acceptable bar pass rates with students at this level of aptitude in recent years, as did Florida Coastal for several years before it started lowering its admission standards in 2012. In contrast, Thomas Cooley, which was just found “in compliance” by the ABA had a 25% LSAT for 2017 of 139. In fact, Cooley’s 75% percentile, at 146, was lower than Florida Coastal’s 25%.

Further proof of Florida Coastal’s more selective admission standards is that the school admitted only 46% of applicants for Fall 2017 and only 30% for Spring 2018. In contrast, Thomas Cooley Law School admitted 85.6% of applicants in 2017. (No information is available regarding Cooley’s Spring 2018 class.) Furthermore, Cooley had a 25% LSAT for 2017 of 139. In fact, Cooley’s 75% percentile LSAT, at 146, was lower than Florida Coastal’s 25%.

The ABA noted that Florida Coastal had a persistent and substantial pattern of non-compliance with Standard 501(b), and I wholeheartedly agree with this assessment. I have repeatedly noted that Florida Coastal, like its sister InfiLaw schools Charlotte and Arizona Summit, engaged in exploitative admission practices for several years (especially 2013-5). There is certainly an argument for sanctioning schools for their past practices. But, Thomas Cooley has engaged in a similar pattern of exploitative admission practices for years, a pattern which continues to this day, and the ABA gave Cooley a pass, apparently based on promises of future improvements. In contrast, Florida Coastal voluntarily began to improve its admission standards, and announced a detailed and specific plan to raise standards even further, in October 2016, over a year before the ABA found the school out of compliance. The ABA should reward schools which take steps to voluntarily correct their non-compliance, not make it more difficult for schools to comply by imposing sanctions which will discourage students with reasonable aptitude from attending. If the ABA wants to appropriately punish Florida Coastal for its past transgressions, it should order Coastal to provide debt relief to students who never should have been admitted in the first place and flunked out or never passed the bar.

The ABA also cited a high attrition rate for Coastal’s fall entering class of 2017. According to the lawsuit, 20 of 66 students who matriculated in Fall 2017 were academically dismissed because they fell below the 2.0 law school grade point average required to remain in good standing, a 30% attrition rate. According to the lawsuit, five of these 20 students stopped attending classes or dropped out for personal reasons. The ABA has a rebuttable presumption that an attrition rate over 20% is evidence of exploitative admissions practices. In this case, I believe the presumption should not apply. The primary purpose of the 20% rule, as I see it, is to ensure that law schools are not admitting students with obviously poor aptitude, primarily for the purpose of taking their tuition money. But there is no evidence that this is what Florida Coastal did in Fall 2017. If the school were seeking to exploit these students for financial reasons, it would place them on academic probation and allow them to continue for at least another semester. What it looks like to me is that Florida Coastal admitted a group of students who appeared to have a reasonably good chance of succeeding, then gave them a rigorous, challenging program with tough, realistic, grading that weeded out those without the aptitude or drive to succeed. Dismissing such students after one semester ensures that such students only “waste” a few months of their lives and don’t incur crippling debt. That is exactly what opportunity law schools should be doing. Yet, ironically, the ABA also cited Florida Coastal for a violation of Standard 301(a) for not having a sufficiently rigorous program of education. Although I am admittedly not privy to all the information the ABA has, I have seen nothing in Florida Coastal’s program of education that suggests it is less rigorous than the typical J.D. program.

Over the last four years, I have perhaps been Florida Coastal’s most outspoken critic. But the point of that criticism was to get Florida Coastal to change its practices and behave responsibly. It appears to me that Florida Coastal has taken that criticism to heart and is making a genuine effort to turn things around. Dean Scott DeVito has done a deep dive into the numbers to understand what kind of students with what kind of LSAT scores and grades have a reasonable chance of success at Florida Coastal, and he has put that plan into action, even though it has required making drastic and painful cuts to faculty and staff. That kind of effort should be acknowledged.

I have no problem with the ABA being tough. But if it is to be tough, it must also be consistent in its approach and transparent in its reasoning. By imposing tough remedial measures on Florida Coastal, while ignoring other law schools with current and ongoing egregious admission practices (e.g. Charleston and Southern), and by its inconsistent actions toward Thomas Cooley and other law schools, the ABA appears to be arbitrary and capricious rather than firm but fair, and that is not good for legal education or the profession.

Comments

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" But if it is to be tough, it must also be consistent in its approach and transparent in its reasoning."

Couldn't agree with you more on this point, which applies to you too.

SO, the next time you are dumping on one school, but ignoring another with characteristics that are similarly or identically poor to those you decry, please don't attack an observer for pointing out this fact (i.e., please don't claim the observer has paid some sort of untoward attention to the school being allowed to escape your scrutiny).

There should be clear rules, applied fairly and consistently, to all law schools. One can only hope that favoritism and insider affiliations don't influence the scrutiny of these schools by commentators and regulators.

It'll be interesting to see how many similar lawsuits we'll see. My guess, after Cooley's apparent success, is that suing the ABA, or even just threatening to sue, will become the go-to response to any adverse compliance action. After the ABA found Cooley in compliance, it's a real up hill battle to justify finding any other law school out of compliance.

Ultimately, the ABA will probably need to scrap its vague, discretionary standards and impose more objective standards such as the previously proposed 75% bar passage requirement. But I'm not sure that even these objective standards will fully insulate the ABA from lawsuits.

Putting the enforcement in the DOE is long overdue. The bottom line is what everyone knows: the ABA is incapable and incompetent.

The DOE should take a very simple, clear approach: take a set of 100 entering law students. After graduation from law school, and within one year, how many of those students have a.) passed the bar and b.) obtained full-time, long-term employment in JD required positions?

If the answer is fewer than, say, 20 out of 100, then the law school should be shuttered. Want to make that number higher or lower? Ok. But, at least we could dispense with the over lawyering of the whole process.

The posts by Frakt really do demonstrate the reason that the approaches to date, including his, can't work.

I know a PI attorney who graduated from Costal and if my spouse or I were rendered sick, sore and disabled due to the negligence of another, I would retain this guy. He is loved and adored by everybody in the courthouse community...he knows how to schmooze with the best of 'em. He understands that law is not about knowing the law or citing appellate opinions. It's about relationships and getting things done for difficult clients in a beaurecreatic environment when the deck is stacked against you by a substandard acting State Farm. They deny, delay and don't pay. They pay no dough to friend or foe and my colleague from Costal knows his way around that....

The problem is not the faculty...I would guess that they are all excellent professors. After all, they transformed my colleague into an Esquire from a Time-Share salesman...

The issue is not faculty, but the business model of the Sterling Partners, a private equity group out of Chicago that owns the joint. Its all about profit and harvesting those federal student loan dollars. Somebody more articulate than me, maybe it was Atlantic Magazine, (don't want any Melania Trump problems) called it "private gain" and "socialized risk."

Probably is a fair comment that the ABA went from "doing nothing" about violations of admission standards to now over-reacting. If the ABA had applied an even-handedness over the years, there would be nothing to correct from in the first place. Plus, the history of enforcement would have had a chance to establish precedent. As it stands, we are jerking from one extreme to the other.

Although, it is nice to see the ABA paying some actual attention, regardless.